On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4736.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves*fn1 and Sabatino.
Defendant appeals from a judgment on trial de novo finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to take a breathalyzer, N.J.S.A. 39:4-50.2, and driving while suspended, N.J.S.A. 39:3-40. As a third DWI offender defendant was sentenced in the Clifton Municipal Court to a custodial sentence of 180 days, a ten-year suspension of his license, a $1000 fine, and other miscellaneous costs and fines. The municipal judge indicated he would consider an application to transfer defendant to an inpatient rehabilitation program after service of 90 days in custody.*fn2 On the refusal charge defendant received a concurrent ten year loss of license. For driving while on a suspended license, defendant received a separate $1000 fine, $33 in costs, a consecutive two year suspension of his driver's license and a consecutive 45 day jail sentence. The aggregate sentence was "12 year[s] loss of license and . . . 225 days [in] jail." The municipal judge subsequently made the ten-year suspensions consecutive to each other because he felt it was required as a matter of law. See N.J.S.A. 39:4-50.4a(a).
The Law Division found defendant guilty of the three offenses on trial de novo and imposed the same penalties.*fn3 Defendant argues that the State failed to prove the DWI by proof beyond a reasonable doubt based only on the field sobriety tests and observations by police officers. Defendant also asserts "there is no evidence that [he] consumed any alcohol" on the night of November 2 and early morning of November 3, 2006 and specifically that "N.J.S.A. 39:4-50 does not apply to the facts of this case" because he "did not operate a motor vehicle under the influence of intoxicating liquor, narcotic, hallucinogenic or habit producing drug[s]" and was to the contrary exposed to work related occupational chemicals causing "a neurotoxic state." He further argues that the DWI conviction was against the weight of the evidence, "the refusal charge should have been dismissed based on the confusion doctrine because appellant lacked the capacity to make a knowing and reasoned response to the implied consent form," and "the trial court erred in convicting appellant of violating N.J.S.A. 39:3-40 because he did not knowingly operate a motor vehicle."
Defendant was found sleeping or passed out in his car with the engine running in Clifton at 1:53 in the morning of November 3, 2006. Upon being awakened defendant told Officer Joshua Eckert that he had two or three drinks at a party in Sparta. He was a short distance from his office, however, and developed at trial that he had been in his office at 12:52 a.m., when office records showed he turned off an oven. Defendant's theory is that he did not have enough time to have driven to Sparta and back in such a short period, so his report of drinking at a party in Sparta was inaccurate. Defendant and other workers testified that he had been working very late on the night of November 2, 2006, at his non-ventilated or inadequately ventilated office, and was exposed to toxic chemicals causing neurotoxicity.
Officer Eckert testified that defendants "speech was extremely slurred" and he had a "moderate smell of [a] possible alcoholic beverage." Because of poor performance on field sobriety test Eckert concluded "[t]hat the defendant was in fact under the influence of alcoholic beverages," and "obviously impaired."
Similarly, at police headquarters Officer Resa "detected an odor of alcoholic beverage on [defendant's] breath" and noted "his speech was slurred." Defendant explained he took prescription medicine and denied drinking. However, he declined to take a breathalyzer test when requested to so by Eckert, who read him the implied consent form. Defendant began "dry heaving" and "spitting into a garbage can." He then inquired if Resa "kn[e]w what [he] did for this town," referring to Clifton.
Defendant presented two doctors, Dr. Lawson Bernstein and Dr. Frank Baim, as witnesses. Bernstein explained the impact of the environmental condition of defendant's office and the chemical exposure that resulted in neurotoxicity for hours after his exposure to the chemical compounds. The condition includes inability to recollect short term memory and lack of orientation. Defendant could therefore neither remember nor have "the cognitive capacity to make a knowing and reasoned response to the questions that he was asked." Thus, according to defendant, in addition to not being guilty of DWI, or knowingly "operating" his vehicle, he could not make an "informed decision" to refuse to take the breathalyzer. However, Dr. Bernstein did not know defendant's actual exposure to substances on the night in question.
Dr. Baim, defendant's personal physician, attributed defendant's condition to the use of the medication Paxil, which was prescribed for anxiety.
We affirm the convictions substantially for the reasons expressed by Judge Donald Volkert in his written opinion of September 16, 2008. DWI is a absolute liability statute, State v. Hammond, 118 N.J. 306, 313-18 (1990), and intoxication on chemicals or otherwise is not a defense. Much as involuntary alcohol intoxication is not a defense to a DWI charge, id. at 317-19, involuntary intoxication by chemicals cannot be. To hold otherwise would contravene the "clear legislative intent and a strong legislative policy to discourage long trials complicated by pretextual defenses." N.J.S.A. 39:4-50 prohibits operating a motor vehicle "while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit forming drug," which, by definition, "includes an inhalant or other substance containing a chemical capable of releasing any toxic vapors or fumes for the purpose of inducing a condition of intoxication." N.J.S.A. 39:4-50(a)(3) (emphasis added). But even if involuntary chemical intoxication were a defense for DWI, the trial judge did not have to accept defendant's version of events. Credibility is for the trial judge to decide, and the judge need not state reasons for the credibility determination or provide detailed, as opposed to general, findings. State v. Locurto, 157 N.J. 463, 470-74 (1999). Moreover, if it were possible that the defendant's disoriented state flowed from his use of Paxil, exposure to chemical compounds and sleep deprivation, the judge could accept the observations of the police regarding defendant's disheveled appearance, slurred language, watery eyes, and smell of alcohol, and make credibility determinations to conclude defendant was operating the vehicle while intoxicated from drinking alcohol.
As already noted, Officer Eckert testified that when he woke defendant he was "under the influence of alcoholic beverage" and "obviously impaired." Similarly, Resa, who observed defendant for twenty minutes at police headquarters, "detected an odor of alcoholic beverage on [defendant's] breath" and "his speech was ...